State v. Downing

• Decision Date: 15 April 2004
• Docket Number: No. 73085-7.
• Citation: State v. Downing, 87 P.3d 1169, 151 Wash.2d 265 (Wash. 2004)
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Charles R. DOWNING, Petitioner.

87 P.3d 1169

151 Wash.2d 265

STATE of Washington, Respondent, v. Charles R. DOWNING, Petitioner.

No. 73085-7.

Supreme Court of Washington, En Banc.

April 15, 2004.

Susan F. Wilk, David L. Donnan, Seattle, for Petitioner.

Kimberly Anne Thulin, Royce Scott Buckingham, Laura D. Hayes, Bellingham, for Respondent.

Jacqueline McMurtie, Seattle, for Amicus Curiae (The Innocence Project Northwest).

David Allen, Cassandra L. Stamm, Allen, Hansen & Maybrown PS, Seattle, for Amicus Curiae (Wash. Ass'n of Criminal Defense Lawyers).

CHAMBERS, J.

Charles R. Downing was convicted by a jury of first degree child molestation. He seeks reversal of an unpublished opinion by Division One of the Court of Appeals upholding his conviction. Downing claims the trial court abused its discretion by denying his request for a continuance to secure an expert witness. Downing also argues that the denial violated his rights to due process and compulsory process under the state and federal constitutions. We do not agree with the Court of Appeals' conclusion that our holding in State v. Swan, 114 Wash.2d 613, 656, 790 P.2d 610 (1990), rendered the defense expert's testimony "unhelpful" as a matter of law. We affirm because the trial court did not abuse its discretion.

FACTS

On December 22, 1999, Downing was charged with first degree child molestation against L.B. L.B. was six years old at the time of the alleged incident and seven years old at the time of trial.

After learning that L.B. had engaged in inappropriate sexual behavior with a younger relative, her mother asked where she learned such behavior. L.B. responded that she had learned if from "Chuck," who is "her dad's neighbor." Report of Proceedings (RP) at 261. L.B.'s parents are separated. While L.B. spends most of her time with her mother, she frequently visited her father at his home during the spring of 1999. Downing lived next door to L.B.'s father.

L.B.'s mother immediately contacted law enforcement. L.B. consistently stated that one weekend while visiting her father, Downing gave her a ride on his four-wheeler, placed both his hands down the front of her pants at some point during the ride, and after the ride, kissed her on his bed in his camper before she ran back to her father.¹ In an interview with detectives, Downing confirmed that he had given L.B. a ride on his four-wheeler one spring weekend. Although he repeatedly denied that any inappropriate contact occurred, Downing responded that he could not remember whether his hand had ever touched L.B.'s "bare vagina." RP at 305-07.

Trial was initially set for March 20, 2000, but was continued multiple times, including three times at Downing's request. Trial began on March 12, 2001. Prior to trial, L.B.'s mother introduced her to Downing's daughter and granddaughter, who had also alleged Downing abused them.² L.B.'s mother also took her to watch the jury return its verdict in the trial regarding the granddaughter's allegations against Downing. L.B. was told that Downing "did the same thing" to his daughter and granddaughter, but she was not told the specific details of their allegations against Downing. Downing's defense counsel was surprised to learn about these contacts on March 12, 2001, moments before the pretrial hearings on L.B.'s competency and the admissibility of her out-of-court statements.

At the pretrial competency hearing, defense counsel urged the trial court to find L.B. incompetent. The defense's argument rested, in part, on the assertion that L.B.'s independent recollection had been tainted by her contact with Downing's family. After considering the evidence and the parties' arguments, the trial court found L.B. clearly competent to testify.³ Additionally, the trial court found her out-of-court statements admissible.

Trial began the next day and a jury was selected. During the lunch hour on the day of trial, defense counsel was able to reach Dr. John C. Yuille by telephone. Dr. Yuille had previously been consulted as an expert with regard to Downing's case. Upon learning that L.B. had contact with other alleged victims, he expressed concern that the contact "could very, very easily taint the testimony of [L.B.]." RP at 221. Before opening statements and outside the jury's presence, defense counsel moved for a continuance in order to secure Dr. Yuille's testimony regarding the potential effect contact with other alleged victims could have had on L.B.'s independent recollection of events.⁴

The State argued that the expert's testimony was not relevant to the reliability of the child's hearsay statements because the statements were made to her mother and the deputy prior to any contact with Downing's daughter and granddaughter. Despite this inappropriate and potentially tainting contact, the trial court concluded that any taint occurred after L.B.'s out-of-court statements and they were admissible. The only difference between the statements L.B. made prior to her contact with Downing's family and those she made in court after contact was the number of times that Downing stopped the four-wheeler to place his hands down the front of her pants. Before the contact with Downing's family, L.B.'s statements suggested that he had stopped the four-wheeler only once to place his hands down her pants. However, her statements in court alleged that he placed his hands down her pants several times during the ride. The trial court denied the motion for a continuance on the grounds that the defense had not made a showing of prejudice because the only change in L.B.'s testimony was the number of times the defendant touched her, which "really hurt the prosecution rather than hurt the defense." RP at 224.

Defense counsel later asked the trial court to reconsider the motion for a continuance.⁵ Again, finding L.B.'s statements before and after the inappropriate and potentially tainting contact with Downing's family are substantially similar and no prejudice had been shown, the trial court denied the motions.

At the conclusion of the State's case, Downing did not testify, and the defense rested without presenting any witnesses. The jury found Downing guilty.

Downing appealed his conviction, and Division One of the Court of Appeals affirmed. State v. Downing, noted at 113 Wash.App. 1009, 2002 WL 1868089. The court below concluded that, although Downing's counsel acted diligently under the circumstances, the trial court did not abuse its discretion. First, it reasoned that Dr. Yuille's testimony would not have helped the trial court acting as the finder of fact with regards to L.B.'s competency because the fact that children are suggestible is known to the average person. Downing, 113 Wash.App. 1009, 2002 WL 1868089, at *3 (quoting Swan, 114 Wash.2d at 656, 790 P.2d 610). Next, the court below reasoned that Downing's offer of proof failed to "explain how L.B.'s testimony could be tainted when it appeared not to be." Id. Downing sought and we granted discretionary review of the Court of Appeals decision. State v. Downing, 149 Wash.2d 1017, 72 P.3d 761 (2003).⁶

ANALYSIS

The primary issues in this case are whether (1) the trial court abused its discretion by denying Downing's request for a continuance, and (2) the trial court's denial violated Downing's rights to due process and compulsory process under the state and federal constitutions.

MOTION FOR CONTINUANCE

In both criminal and civil cases, the decision to grant or deny a motion for a continuance rests within the sound discretion of the trial court. State v. Miles, 77 Wash.2d 593, 597, 464 P.2d 723 (1970). Since 1891, this court has reviewed trial court decisions to grant or deny motions for continuances under an abuse of discretion standard. State v. Hurd, 127 Wash.2d 592, 594, 902 P.2d 651 (1995); Skagit Ry. & Lumber Co. v. Cole, 2 Wash. 57, 62, 65, 25 P. 1077 (1891).

We will not disturb the trial court's decision unless the appellant or petitioner makes "a clear showing ... [that the trial court's] discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971) (citing MacKay v. MacKay, 55 Wash.2d 344, 347 P.2d 1062 (1959)). In exercising discretion to grant or deny a continuance, trial courts may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure. State v. Eller, 84 Wash.2d 90, 95, 524 P.2d 242 (1974); RCW 10.46.080; CrR 3.3(f). However, trial courts must also compare any detriment to a child victim that might be caused by a continuance with the compelling reasons for continuing the trial. See RCW 10.46.085.

In the case at bar, Downing moved for a continuance in order to secure expert testimony for the express purpose of reconsidering the trial court's ruling that L.B. was competent to testify. Thus, on review, we compare the reasons for granting the continuance and reopening the issue of L.B.'s competency against the reasons for denying the motion to determine if the trial court abused its discretion. See Carroll, 79 Wash.2d at 26, 482 P.2d 775.

Downing argues that the trial court abused its discretion because defense counsel made a sufficient showing of surprise by the new evidence, diligence in securing an expert witness, and materiality of the expert's proposed testimony. The record reflects Downing's counsel was surprised to learn L.B. had contact with other alleged victims; and as noted by the Court of Appeals, defense counsel diligently secured an expert witness the following day. Downing, 113 Wash.App. 1009, 2002 WL 1868089, at *2. The parties disagree as to whether Dr. Yuille's testimony was material to the trial court's competency finding.

While we affirm the Court of Appeals and uphold Downing's conviction, we do not adopt the reasoning of the court below based upon our holding in Swan. In the companion case, State v. Willis, No. 73345-7, 151 Wash.2d 255...